Saxton National Bank v. Carswell
| Decision Date | 21 January 1895 |
| Citation | 29 S.W. 279,126 Mo. 436 |
| Parties | Saxton National Bank v. Carswell et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.
Affirmed.
""Simmons Keller & Castle for appellants.
(1) The statute (city charter) under which the tax bill was issued was unconstitutional, because it provided for taking property without "due process of law." No hearing was provided for the taxpayer. ""First. A hearing is an essential element of due process of law. ""Dunn v Burleigh, 62 Ky. 24; ""Norman v. Heist, 5 W. & S 193; ""Clark v. Mitchell, 64 Mo. 564; ""Campbell v. Dwiggins, 83 Ind. 473; ""Tyler v. State ex rel., 83 Ind. 565; ""Stuart v. Palmer, 74 N.Y. 183; ""Gatch v. Des Moines, 63 Iowa 418; ""Strosser v. Fort Wayne, 100 Ind. 456; ""Weimer v. Bunbury, 30 Mich. 210; ""People ex rel. v. Supervisors, 74 N.Y. 234. ""Second. And applies to tax cases. ""Spencer v. Merchant, 125 U.S. 345; ""Railroad cases, 115 U.S. 321; ""Palmer v. McMahon, 133 U.S. 669; ""Lent v. Tilson, 72 Cal. 404; ""Scott v. Toledo, 36 F. 397; ""Campbell v. Dwiggins, 83 Ind. 473; ""Tyler v. State ex rel., 83 Ind. 565; ""Scott v. Brockett, 89 Ind. 418. ""Third. And must be granted before assessment becomes final. ""Scott v. Toledo, 36 F. 397; ""Norton v. Clark, 49 N.Y. 243; ""Overing v. Foote, 65 N.Y. 269; ""Bennett v. Buffalo, 17 N.Y. 383; ""St. Louis v. Richeson, 76 Mo. 484; ""St. Louis v. Ranken, 96 Mo. 505; Cooley on Taxation, p. 572; ""Hatson v. Woolbridge, 16 P. 549; ""Seibert v. Copp, 62 Mo. 187; ""Thomas v. Gain, 35 Mich. 164. ""Fourth. A hearing in the suit to collect the tax bill is not sufficient. ""St. Louis v. Ranken, 96 Mo. 497; ""St. Louis v. Brewing Co., 96 Mo. 677; ""Michael v. St. Louis, 112 Mo. 610. ""Fifth. No one but those specially authorized can make an assessment. The circuit court can not. ""Taylor v. Secor, 3 Cent. Law Jour. 340; ""Heinze v. Levee Co., 19 Wall. 660; ""State ex rel. v. Railroad, 114 Mo. 1; ""St. Louis v. Provenchere, 92 Mo. 69; ""Railroad v. Cass Co., 53 Mo. 17. ""Sixth. A hearing in legislative proceedings is not essential. ""Spencer v. Merchant, 125 U.S. 345; ""St. Louis v. Ranken, 96 Mo. 505. ""Seventh. Assessors act in a judicial capacity. ""Palmer v. McMahon, 133 U.S. 669; ""Scott v. Toledo, 36 F. 397; ""St. Louis v. Ranken, 96 Mo. 505; ""Clark v. Norton, 49 N.Y. 243. (2) The work must be substantially completed before the tax bill can issue. R. S. 1889, sec. 1406; 2 Dillon on Mun. Corp. [4 Ed.], sec. 811; ""St. Joseph v. Anthony, 30 Mo. 537; ""City to use v. Clemens, 49 Mo. 552; ""Kiley v. Cranor, 51 Mo. 541; ""Sheehan v. Owen, 82 Mo. 458; ""Cole v. Skrainka, 105 Mo. 303; ""Independence v. Gates, 110 Mo. 374; ""Meyer v. Wright, 19 Mo.App. 283; ""Bank v. Payne, 31 Mo.App. 512; ""Mfg. Co. v. Hamilton, 51 Mo.App. 120; ""Henderson v. Lambert, 14 Bush (Ky.), 24.
""Vories & Vories and ""Ben. J. Woodson for respondent.
(1) The same law that makes a tax bill for grading a lien upon the adjoining property, provides for a taxpayer's "day in court" as follows: "Provided, that nothing in the section shall be so construed as to prevent any defendant from pleading in reduction of the bill, any mistake or error in the amount thereof, or that the work therein mentioned is not done in a good and workmanlike manner." R. S. 1889, sec. 1407. (2) The taxpayer must have legal notice of the suit on tax bill, the same as notice of any other suit, and has the same right to come in and defend the same, after having said notice. And it is not necessary that he shall have notice before original assessment, if the law provides a manner of contesting assessment after it has been made. This is "due process of law" within the meaning of the constitution of Missouri. ""St. Louis v. ""Richeson, 76 Mo. 470; ""City of Kansas v. Huling, 87 Mo. 203; ""St. Louis v. Ranken, 96 Mo. 497; ""St. Louis v. Brewing Co., 96 Mo. 677; ""Hagar v. Reclamation District, 111 U.S. 701; ""Lent v. Tilson, 140 U.S. 316; " ""Hagar v. Reclamation District, 111 U.S. 701; citing and reviewing a cloud of authorities. (4) Appellants contend here that the work was not completed. This court will not notice any point, unless it is saved in the exceptions. 2 McQuillan's Pleading and Practice, secs. 2064, 2065; ""Ferneau v. Whitford, 39 Mo.App. 311. (5) The circuit court having seen the witnesses and passed on the evidence on this point, this court will not review the evidence nor reverse the case on the weight of the evidence. ""O'Connell v. Railroad, 106 Mo. 482; ""Anderson v. Griffith, 86 Mo. 549; 2 McQuillan's Pleading and Practice, secs. 2077, 2080, and cases cited.
This appeal is from a judgment of the circuit court of Buchanan county enforcing a special tax bill against the property of Mrs. Carswell abutting on Chestnut street, in the city of St. Joseph, under an ordinance establishing the grade of said street.
St. Joseph is a city of the second class, and its charter is contained in the Revised Statutes of 1889, volume 1, chapter 30, article 3, page 359. The provisions of the charter prescribing the power and the mode of procedure in grading its streets and levying the cost thereof are contained in sections 1403, 1404, 1405, 1406 and 1407, Revised Statutes, 1889.
The common council is invested with the power to cause to be graded, constructed, reconstructed, paved or otherwise improved and repaired, all streets, alleys and highways in said city, at the expense of the property holders owning the property fronting on such street. The cost of all work on streets, avenues, and highways shall be charged as a special tax on the lands on both sides of, and adjoining, such street. The city is required to make a contract for grading a street. After the contract is let, the council is required by ordinance to cause an assessment of all the abutting property on both sides of the street, exclusive of the improvements thereon, to be made by the city assessor and this assessment, when completed, is delivered to the city engineer, and when the grading is completed, the engineer is required to compute the cost thereof and apportion it among the several lots or tracts charged with the cost thereof, according to the value thereof fixed by the assessor. Having apportioned to each lot or tract its share of the cost, the city engineer is required to make out and certify tax bills in favor of the contractor who did the work against each lot or tract.
By section 1407 such tax bills are made liens on the lots against which they are issued, for a period of two years, but no longer, unless suit is brought thereon. Such tax bills are assignable. The tax bill is made prima facie evidence of the validity of the bill, of the doing of the work, and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bill. But the statute further provides "that nothing in this statute shall be so construed as to prevent any defendant from pleading, in reduction of the bill, any mistake or error in the amount thereof, or that the work therein mentioned is not done in a good and workmanlike manner; and provided, further, that, if any party shall set up by way of defense that the work was not done in a workmanlike manner, according to the class of work mentioned in the contract and that such party, before the commencement of the suit, tendered to the contractor or other holder of the bill the full value of the work done, and shall establish the same on the trial, the recovery shall only be for the amount so tendered, and judgment for cost shall be rendered against the plaintiff."
In this case Glynn was the contractor and plaintiff is the assignee of the tax bill against defendants' lot. The appeal is brought to this court because in the circuit court defendants insisted that the statute under which the tax bill was issued was in contravention of the state and federal constitutions in that it sought to take defendants' property without due process of law, in that it sought to create a lien on his property and compel him to pay a local assessment without an opportunity to be heard on the matter. An elaborate brief has been filed in behalf of the defendants to establish the proposition that the charter of cities of the second class is unconstitutional in that it subjects defendants' lot to a lien for the pro rata cost of grading Chestnut street without according them a hearing.
The constitutionality of these provisions in so far as they pertained to the cost of sidewalks was affirmed by a unanimous court in City of Kansas v. Huling, 87 Mo 203, but defendants attempt to distinguish that case from this because they say "the tax bill was for actual cost of repairing sidewalks in front of defendants' premises and no assessment or apportionment of any kind was made or needed." But, in either case, the lot owner is called upon to pay for a local assessment for maintaining an abutting highway; in either case it is constructed by a third person and its cost estimated and a special tax bill issued without an opportunity to him of a hearing as to its reasonableness or correctness until he is sued, when he is allowed to make the same defense. Can it make any difference in principle that in the matter of the sidewalk the bill is for the cost of constructing his sidewalk and he is chargeable with the actual cost or quantum meruit as estimated by the contractor, whereas, in the grading, the whole street is brought to grade under a contract and...
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